What are Business Associate Agreement AI Mistakes?
A business associate agreement is a legally-binding contract that’s required under the Health Insurance Portability and Accountability Act (HIPAA). It protects Protected Health Information (PHI) that third-party vendors could have access to, and is required if your organization is covered by HIPAA.
If you need to draft a business associate agreement, you might consider using an AI tool such as ChatGPT to assist you or draft it from scratch. While this might sound convenient, it can expose you to various risks.
Read the rest of this article to explore some of the most common business associate agreement AI mistakes, how to avoid them when using AI, and how a qualified lawyer can assist you with the process of drafting your business associate agreement.
What are Common Business Associate Agreement AI Mistakes?
A business associate agreement must explain how PHI can be used and provide strong liability clauses to protect parties. Using AI to draft this agreement might cause you to neglect required elements or provide inaccurate information. Here’s a rundown of some of the most common business associate agreement AI mistakes.
- Outdated templates. HIPAA requirements can alter due to regulatory changes. This is why you need to ensure your agreement is always up to date. Relying on an AI tool can result in it being drafted according to a template, which could risk non-compliance.
- Neglecting to include subcontractors. Your business associate could be working with subcontractors who access PHI. The AI tool you use to generate this contract might not make provision for these working relationships, exposing you to legal risks.
- Vague usage terms. If the agreement doesn’t contain specific details about what the business associate is and isn’t permitted to do with PHI, this can create ambiguity. AI vagueness can easily trigger misunderstandings and disputes.
- Weak breach notification provisions. It’s essential for the agreement to include clear, specific processes for breach notification, such as within how many days it must be done and what information is required. AI might gloss over all these details, creating future problems.
- Lack of post-termination provisions. AI might miss important information regarding termination duties. It might state that PHI has to be returned or destroyed, without considering exactly how this should be done. There are also operational elements to consider, such as archives or backups, which might not always be deleted right away.
- Not aligned with your Master Services Agreement (MSA). AI tools could create inconsistencies because they won’t consider the MSA when drafting your business associate agreement. Although your business associate agreement varies from an MSA, these documents need to be aligned to prevent legal and liability risks.
How Can You Avoid Business Associate Agreement AI Mistakes?
To minimize the risk of AI mistakes when drafting your business associate agreement, there are some things to do prior to prompting an AI tool.
Outline the Details
When prompting an AI tool to draft the agreement, you shouldn’t give a generic request. The more specific you can be about what services are provided, how PHI is going to be accessed and stored, and if cloud hosting is involved, the more you’ll increase the chance of receiving a detailed draft.
Spot Missing Information
After receiving your AI-generated document, it’s not enough to simply review it. You should prompt the AI tool again, this time to check for anything that could be missing.
An example could be to ask the AI tool to question the clauses for accuracy or identify any risks in them. You can then use this info to fine-tune and improve your business associate agreement draft.
Understand the PHI
Before prompting an AI tool to draft a business associate agreement, you should have a firm grasp of what PHI identifiers will be used. This could include patient names and medical record numbers, clinical notes, billing information, and more. You should also consider what isn’t included so that AI will avoid overly broad permissions.
Consider Third Parties
An AI tool won’t provide clarity about subcontractor provisions if you don’t first identify the third parties you’re using, such as data processors, customer support vendors, and more.
Select Your Safeguards
Understand what measures will be used to protect data, such as encryption and logging requirements, and security certifications. If you don’t provide these, an AI tool might use vague or generalized language, such as “appropriate safeguards” that lack adequate protection.
How Does a Lawyer Avoid Business Associate Agreement AI Mistakes During the Drafting Process?
Hiring a lawyer to review or draft your business associate agreement is advisable to ensure compliance and reduce your dispute risks. Here’s how a lawyer will help you avoid making AI mistakes.
- A lawyer will review your AI-generated business associate agreement regularly so that it’s always updated according to the regulations.
- They’ll be able to negotiate terms in the business associate agreement so that you can have a more favorable contract.
- They’ll ensure the agreement is properly executed, such as with signing and dating the agreement prior to accessing or sharing PHI.
- They’ll provide details about vendors, their services, and duties, to avoid ambiguity.
- They’ll make sure the agreement is aligned with real-world operations.
- They’ll ask you questions about your specific situation and agreement to reduce your risks.
- They’ll guide you on compliance as they understand what is required, such as audit rights and breach reporting requirements.
- They’ll consider information that isn’t included in the business associate agreement, such as if support personnel can access PHI.
Where to Find a Lawyer for Business Associate Agreement Drafting and Review
If you want to work with a qualified lawyer to review or draft your business associate agreement, online legal platforms make finding the best one a simple process.
ContractsCounsel is one of the largest online legal marketplaces that gives you access to a network of vetted lawyers. All lawyers on the platform have years of experience in contract drafting and review. You can request that one of them helps you by following these easy steps:
- Go to the ContractsCounsel marketplace.
- Post your project for free. Include a few details to help you find the most suitable lawyer, such as if you’d like a contract drafted or an AI-generated contract reviewed.
- Receive multiple bids from qualified lawyers directly on the platform who have the experience and expertise to help you.
- Review the lawyers’ profiles. You can examine extensive lawyer data on the platform, such as their location, client ratings for previous projects, expertise, and credentials.
- Connect with a lawyer you think is best suited to your requirements and hire them.
